Police-state proponents sent back to the drawing board as highest court beats back Fourth Amendment erosions

In a blow to the President Obama and pro-police state organizations like the Fraternal Order of Police, the U.S. Supreme Court has ruled [PDF] that police and federal agents cannot track U.S. citizens via GPS without a warrant. The decision is a dramatic departure from lower courts, including a U.S. Federal Court of Appeals, which had previously opined that police could invade citizens' private property and plant tracking devices on their vehicles for 24-hour surveillance.

I. Obama v. The Fourth Amendment

The issue all boils down to the Fourth Amendment in the Bill of Rights, part of the Constitution -- the U.S. federal government's most important legal document. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The argument has revolved around whether efforts to invade "suspects'" property without court authorization and tracking them without court authorization counts as "unreasonable searches".

By looking to creatively redefine the meanings of "reasonable", "searches", and "effects", the Obama administration, Bush administration, and others have looked to subtly erode Fourth Amendment protections, allowing the government to remove the burdensome civil liberty, which has long stood in the way of those whose goal is unchecked federal power.

Presidents Barack Obama and George W. Bush defended warrantless tracking of American citizens, part of both administrations' broader plans to expand federal government in different ways. [Image Source: Fits News]

Officer Shelley Broderick of the Fairfax, Virginia Police Department -- one of the departments to embrace the device -- defended the device and police departments decision to prevent the public from knowing how it's being used, stating, "We don't really want to give any info on how we use it as an investigative tool to help the bad guys. It is an investigative tool for us, and it is a very new investigative tool."

Powerful forces have been working to erode Fourth Amendment protections in the U.S. over the last decade, clearing the way for an unchecked "police-state". [Image Source: Reuters]

The wireless, warrantless GPS tracking of suspects first came into vogue between 2006-2008, as wireless GPS bugs replaced cruder "beeper" devices, which emitted a supersonic tone along a vehicle to be tracked. In several cases, GPS tracking has led to evidence that incriminated suspects, which in turn resulted in appeals. The Ninth Circuit Court of Appeals (which covers California, and other Western states) and the Seventh Circuit Court of Appeals (which covers Texas and several other states) had both ruled that the practice was acceptable [1][2][3].

Faced with the prospect of life in prison, the suspects in both the Texas and California cases appealed to the D.C. Circuit Court of Appeals, but saw it reject their claims in 2010. The Federal Appeals court ruled that the U.S. Supreme Court ruling U.S. v. Knotts, 460 U.S. 276, a 1983 case on beeper tracking, had already decided that such tracking was legal.

II. Supreme Court Agrees to Hear Case

However, questions remained even after the Federal Appeals court ruling. Beeper tracking was not digitally recorded and was only viewable within a short area, where as GPS surveillance could be carried out 24-7 from a remote location. In other words, the technology and the scope of the surveillance were quite different.

President Obama and the lower courts sought to creatively redefine the Fourth Amendment to only apply in cases where the officers had to go to great lengths to enter a suspect's property. In other words, unless you had a fence, the administration argues that police should be able to invade your property and plant tracking devices on your vehicle without any sort of regulation.

As fencing your property is not free -- this caused the debate to take on class injustice overtones. In a dissenting opinion in the Ninth Circuit Court's decision, Chief Judge Alex Kozinski argued that this system equated justice to the amount of money you have. He points out that the rich with electric gates, fences, and security booths have a large protected zone of privacy around their homes -- which allows their property to qualify for the creative reinterpretation of Fourth Amendment protections.

Unfortunately for President Obama and fellow proponents of warrantless tracking, the Supreme Court has ruled (U.S. v. Jones, 10-1259; PDF) unanimously (9-0) that it is illegal for police to track citizens without warrant, using GPS.

Justice Antonin Scalia, the longest serving Supreme Court Justice and an appointee of President Ronald Reagan, delivered one of the main opinions. In a reversal of the 1983 decision Justice Scalia, rights that even the act of entering a residential property (regardless of "fences", etc.) constitutes a search and requires a warrant.

He writes:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a "search" within the meaning of the Fourth Amendment when it was adopted.

He explains that Oliver v. United States, 466 U. S. 170 (1984) the case lower courts used to justify the invasion of unfenced properties, was being inappropriately applied. He points out that Oliver involved an empty lot, versus the residential setting of the current case and others. He writes:

[O]ur conclusion in Oliver v. United States, 466 U. S. 170 (1984), that officers' information-gathering intrusion on an "open field" did not constitute a Fourth Amendment search even though it was a trespass at common law, id., at 183. Quite simply, an open field, unlike the curtilage of a home, see United States v. Dunn, 480 U. S. 294, 300 (1987), is not one of those protected areas enumerated in the Fourth Amendment. Oliver, supra, at 176–177. See also Hester v. United States, 265 U. S. 57, 59 (1924). The Government’s physical intrusion on such an area—unlike its intrusion on the "effect" at issue here—is of no Fourth Amendment significance.

He also argues that Knotts was misinterpreted by the lower courts, writing:

United States v. Knotts, 460 U. S. 276 (1983), does not foreclose the conclusion that GPS monitoring, in the absence of a physical intrusion, is a Fourth Amendment search. As the majority’s opinion notes, Knotts reserved the question whether “ ‘different constitutional principles may be applicable’ ” to invasive law enforcement practices such as GPS tracking. See ante, at 8, n. 6 (quoting 460 U. S., at 284).

The vehicle was an "effect" and hence the police committed yet another Fourth Amendment violation in invading it without warrant:

The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." It is beyond dispute that a vehicle is an "effect" as that term is used in the Amendment.United States v. Chadwick, 433 U. S. 1, 12 (1977). We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a "search."

In other words, the Supreme Court could have delivered a narrow ruling against simply GPS tracking (based on the invasion of an effect), but it instead both did that and delivered a far broader rebuke of invasions of private residences without warrant, which it says are being justified by abuse and misunderstanding of Oliver.

IV. What This Means for Americans' Freedoms

The decision puts a firm end to the federal government's growing efforts to expand warrantless searches:

1. Enter unfenced open fields without warrant and search them (though it presumably cannot search vehicles "effects" in them).

The decision is important as it prevents both more Orwellian abuses in which a federal authority could look to use these privileges to quell political opposition and consolidate power. But it is equally important for preventing the more common micro-abuses in which individuals could look to abuse the unchecked power in unauthorized ways. For example in 2010 a police officer used a department GPS tracker to stalk his ex-girlfriend who eventually found the device and realized it was how he had been knowing where to find her after several harassing encounters.

A police officer used a department GPS tracker to stalk his girlfriend in 2010.
[Image Source: KABC/ABC 7]

The Supreme Court decision clears Washington, D.C. nightclub owner Antoine Jones, who had been facing life in prison. It will likely lead to several other similar verdicts being overturned. In the short term this may seem like a bad thing, as suspected drug dealers will be back on the streets.

But in the long term it simply means that police will have to catch criminals by Constitutional methods -- good old fashioned warrant-backed police work.

The words of Leonard H. Courtney, a luminary British reformist politician, seem to apply in this case. He famously stated, "The condition upon which God hath given liberty to man is eternal vigilance."

And then there's the words of American Founding Father Benjamin Franklin who , "Sell not virtue to purchase wealth, nor Liberty to purchase power."

Oh cmon. We're "only" spending about 180% of what we take in. People love to point to defense spending but sorry we weren't running $1.6 trillion deficits PER YEAR at the height of the Afghanistan and Iraq wars even if you added the special allocations for those wars into the budget.